Unextinguished: Rights and the Indian Act

Borrows, John, University of New Brunswick Law Journal

Rights discourse can be simultaneously liberating and limiting. (1) Rights are limiting when they are essentialized, universalized, and placed above the fray of human affairs. (2) They can be dangerous when they are abstracted from the real-world struggles faced by ordinary people. (3) On the other hand, rights can be liberating if they are used as political tools. (4) They create opportunities to either challenge or facilitate governmental action. (5) When rights are regarded as real-world--rather than metaphysical--instruments, they can be strategically deployed or discarded, given the grounded context in which they operate. (6) Rights are not heavenly endowments or intellectually pure forms. (7) They are very human constructs and, as such, are not beyond human manipulation. (8) As Oliver Wendell Holmes observed: "The life of the law has not been logic: it has been experience." (9)

The experience of Indigenous peoples within Canada's constitution highlights the composite nature of rights. Rights have been both liberating and limiting. (10) Aboriginal and treaty rights within Canada's constitution do not flow from an ultimate convergence in values. (11) Widespread agreement about their nature and purpose is far from self-evident. (12) Reconciliation between Indigenous peoples and the Crown is an abstract aspiration. (13) In particular, efforts to overturn federal legislative discrimination have largely failed; rights discourse has not yielded significant victories for Indigenous peoples in Canada in this regard. (14) Despite strong academic commentary that section 35(1) of the Constitution Act, 1982 (15) recognizes and affirms a right to Aboriginal self-government, (16) the Supreme Court of Canada has not recognized this power. (17) The federal Indian Act (18) stands in the way of good Indigenous governance while remaining resilient in the face of rights challenges. (19)

Since 1876, the federal Indian Act has inappropriately detracted from First Nations' power. The Act flows from the idea that Indigenous people are inferior and must be schooled in Canadian forms to hasten assimilation. (20) The Act is explicitly designed to rupture First Nations socio-political relations and forcibly absorb individual Nation members within broader Canadian society. (21) Its formal operation has devastating effects. Its underlying philosophy damages most everyone it touches. Its provisions narrowly define and heavily regulate Indigenous peoples' citizenship, (22) land rights, (23) succession rules, (24) political organization, (25) economic opportunities, (26) fiscal management, (27) educational patterns, and attainment. (28) The Act makes First Nations largely subject to provincial legislation and regulation without their consent. (29) It usurps First Nations' authority and responsibility to deal with their own problems in an effective way.

This article examines the ineffectual nature of rights discourse as it relates to overturning the Indian Act. It argues that rights could be more successfully employed if Indigenous peoples' own views about them were given greater prominence. In so doing, this article advances the Supreme Court's recognition that "it is possible, and, indeed, crucial, to be sensitive to the aboriginal perspective itself on the meaning of the rights at stake." (30) Seeing rights as perspectival brings them into the real world. It helps us see that rights are subjective. They are human-centered creations; they do not embody objective truths. Viewing rights in this way liberates Indigenous peoples from fully embracing or rejecting them. Rights should be seen for what they are--helpful for some purposes, harmful for others. A selective invocation of rights discourse does not require the adoption of a worldview that puts rights at the centre of life. While particular worldviews may have generated rights discourse, thus making their use an extremely risky affair, (31) the future effects of these worldviews are not preordained. …

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